Thursday, December 31, 2020

January 2021 Judiciary News

Leave no vacancy unfilled (until January 20).

Nominations, Hearings, Confirmations:

Post-election nominations:  Ed Whelan refutes the claim that there is a long tradition of not confirming nominees of an outgoing president.  The last time an outgoing president had a senate run by his party was 1980, when Jimmy Carter nominated Stephen Breyer to the 1st Circuit after the election.

Obstruction:  Carrie Severino reviews the tactics D senators used to try to obstruct President Trump's judicial nominees.  R senators should keep this in mind.

Durbin:  Senator Dick Durbin will become the Democrat on the Senate Judiciary committee after Senate Ds passed a rule allowing him to hold the position and remain D whip.  Some progressive groups preferred Sheldon Whitehouse get the job.

Biden:  This article on Biden's approach to judicial nominations says that many D appointed judges are planning to take senior status next year, but the Georgia runoffs may affect their timing.  Several R appointed judges confirm that they were approached about retiring under Trump.  John Jones (MD-PA), Michael Kanne (7th Circuit), and Leslie Southwick (5th Circuit) all said that they have no immediate plans to retire, but would not rule out retiring under a D president.

Biden:  Various interest groups are demanding more 'diversity' among Biden's judicial nominees.  Not ideological diversity, obviously.

Biden:  Harsh Voruganti of the Vetting Room identifies four judges as possible Biden Supreme Court nominees.  They are Ketanji Brown Jackson (D-DC), Leondra Kruger (California Supreme Court), Sri Srinivasan (DC Circuit), and Paul Watford (9th Circuit). 

Senate Judiciary Committee hearings:
TBD

Confirmations:
TBD

The Federal Judiciary:

Supreme Court:  The Supreme Court unanimously dismissed a lawsuit by the Texas Attorney General attempting to overturn the election results in four states.  Andrew McCarthy explains why the suit was frivolous.

Trump:  Conservative judges, including those appointed by President Trump, have rejected his post-election lawsuits.  This refutes the claims that they are partisans who rule for policies they personally prefer.

Alito:  Justice Alito recently gave a speech to the Federalist Society.  He criticized the court's lack of vigilance in protecting religious liberty and the Second Amendment.  He implicitly criticized Chief Justice Roberts on those issues.

Breyer:  Justice Stephen Breyer says he will retire "eventually".

Federal Circuit:  The Federal Circuit never got a Trump nominee.  This circuit is less partisan, as it deals with patent law and some suits against the government.  The article is mainly concerned with the race of potential nominees, not their qualifications.

2nd Circuit:  Senior Judge Ralph Winter died on December 8 at age 85.  Reagan appointed him to the 2nd Circuit in 1981.  He took senior status in 2000.

5th Circuit:  Senior Judge Thomas Morrow Reavley died on December 1 at age 99.  He was on the Texas Supreme Court (1968-1977), and Carter appointed him to the 5th Circuit in 1979.  He took senior status in 1990.  He married fellow 5th Circuit judge and Carter appointee Carolyn Dineen King in 2004.

5th Circuit:  Trump's three appointees to the 5th Circuit representing Texas, Don Willett, James Ho, and Andy Oldham, are among the most conservative judges on the appeals courts.

Senior Status declarations:
WD-AR: Paul K. Holmes III (Obama) 11/10

State Supreme Courts:

Alaska:  Alaska Supreme Court Chief Justice Joel Bolger will retire in June 2021.  His replacement will be appointed by Governor Mike Dunleavy.  In July 2020, he appointed Dario Borghesan, who is (apparently) the only conservative on the five-member court.

Georgia:  Governor Brian Kemp announced the appointment of Fulton County Superior Court Judge Shawn Ellen LaGrua to serve on the Supreme Court of Georgia on December 1.  She was previously Inspector General for the Georgia Secretary of State’s Office, DeKalb County Solicitor General, and a prosecutor in Atlanta.  She replaces Justice Keith Blackwell, who retired in November.

Illinois:  Judge Robert Carter of the 13th Judicial Circuit Court was selected by the Justices of the Illinois Supreme Court to fill the district 3 seat of Justice Thomas Kilbride, who lost a retention election.  Carter was elected as a D.  He is 74, and has pledged not to seek election in 2022.

New Mexico:  Governor Michelle Lujan Grisham appointed Julie Vargas to the Supreme Court, filling the seat of Justice Judith Nakamura, who retired.  Vargas was a judge of the New Mexico Court of Appeals since her election in 2016.

North Carolina:  Supreme Court Chief Justice Cheri Beasley conceded the election to Republican Justice Paul Newby.  Rs won all three races in 2020.  The court's breakdown is now 4 D, 3 R.

Ohio:  R Ohio Supreme Court Justices Sharon Kennedy and Pat DeWine are considering running for Chief Justice.  Chief Justice Maureen O’Connor is age-limited in 2022.  Kennedy's term ends in 2026, while DeWine's term ends in 2022. D justices Michael Donnelly and Jennifer Brunner are rumored to be interested in the seat.

Rhode Island:  Governor Gina Raimondo named Melissa Long and senator Erin Lynch Prata to the Rhode Island Supreme Court.  Long is a Superior Court Judge since 2017, and was previously deputy secretary of state.  Prata's nomination was controversial due to a state ethics law that requires a one year hiatus before a sitting legislator can take a state job.  However, the state Ethics Commission voted 5-2, against the advice of its lawyers, to allow Lynch Prata to apply without waiting a year.  Long will succeed Supreme Court Justice Francis Flaherty, who retired December 31, and Prata will succeed Justice Gilbert Indeglia, who retired in June.  The Rhode Island Supreme Court had all R appointees, despite not having an R governor since 2010.

Texas:  Governor Greg Abbott appointed Houston judge Jesse McClure to the Texas Court of Criminal Appeals, where he will be the only black judge.  McClure was appointed to his current job in 2019 but lost election in 2020.  He replaces Judge Michael Keasler, age 78, who is age-limited.

Wisconsin:  Justice Brian Hagedorn of the Wisconsin Supreme Court has ruled differently than his three R colleagues on several high-profile issues.  Depending who you ask, he is either following the law in contrast to his more partisan colleagues, or engaged in a Roberts-style effort to appear above the fray.

Numbers and Trivia:

Party Line Votes:  Only 17 of President Trump's 54 appeals court judges (31%) got any support from Ds on the Senate Judiciary Committee.  Perhaps President Biden's nominees will receive similar treatment from Rs on the Senate Judiciary Committee.

Chief Judges:  The Presidents who appointed chief judges of the 13 appeals courts are Clinton (4, 6, 9), W (1, 2, 3, 5, 7, 8, 10, 11, Fed), and Obama (DC).  There are four chief judges that will change in 2021.  They are expected to be
6th Circuit (May 23) R. Guy Cole (Clinton) -> Jeffrey Sutton (W)
Federal Circuit (May 24) Sharon Proust (W) -> Kimberly Ann Moore (W)
9th Circuit (December 1) Sidney Thomas (Clinton) -> Mary Murguia (Obama)
3rd Circuit (December 4) Brooks Smith (W) -> Michael Chagares (W)
There could be more, and the dates could be sooner, if any chief judge steps down early.

History:

Senior status:  Harsh Voruganti of the Vetting Room reviews the history of taking senior status upon confirmation of a successor, an increasingly common practice. 

Resources:
Bench Memos (National Review)
The Vetting Room

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